Conditions of Sale

IMPORTANT: CONDITIONS 7, 13 AND 14 PROVIDE THAT CERTAIN RISKS ARE TO BE BORNE BY THE BUYER AND MAY AFFECT THE BUYER’S INSURANCE ARRANGEMENTS

1. DEFINITIONS: The “contract” means the agreement between ARROWSMITH ENGINEERING (COV) LTD and the Buyer for the supply of goods:”the Buyer” means the purchaser of the goods; the “goods” means the subject matter of the contract and includes services; the “price” means the price of the goods and for any other payment to be made by the Buyer to ARROWSMITH ENGINEERING (COV) LTD hereunder.

2. GENERAL: The contract is entered into and all quotations are given subject to these conditions which may only be varied or waived by written agreement between ARROWSMITH ENGINEERING (COV) LTD and the Buyer. No contract shall be made until ARROWSMITH ENGINEERING (COV) LTD has accepted in writing an order placed by the Buyer. If these conditions differ from the terms of any offer made or order placed by the Buyer, any subsequent communication by ARROWSMITH ENGINEERING (COV) LTD constitutes a counter offer and not acceptance of such terms. Any quotation is given by ARROWSMITH ENGINEERING (COV) LTD on the basis that no contract shall come into existence until ARROWSMITH ENGINEERING (COV) LTD despatches an acknowledgement of order to the Buyer. The quotation may therefore be varied or withdrawn without notice.

3. DESCRIPTIONS: All photographs, drawings, descriptions and details in ARROWSMITH ENGINEERING (COV) LTD catalogues, price lists and other documents are only indicative of a type of product and do not constitute warranties, conditions or representations. No report, representation, advice, communication or statement made by a representative of ARROWSMITH ENGINEERING (COV) LTD shall be binding on ARROWSMITH ENGINEERING (COV) LTD unless expressly contained herein, subject to Clause 13.4(ii). ARROWSMITH ENGINEERING (COV) LTD reserves the right to incorporate improvements in the general development of its products and make and charge for mandatory modifications to the goods.

4. PRICE:

4.1 Unless otherwise agreed in writing, all prices quoted are net ex-works trade packed and apply only in relation to the total quantities and dates and rates of delivery quoted. All prices are subject to the addition of all other duties and taxes (including where applicable Value Added Tax at the rate ruling at the relevant tax point).

4.2 ARROWSMITH ENGINEERING (COV) LTD reserves the right, by giving written notice to the Buyer at any time before delivery to adjust the price of the goods to take account of increases in the cost to ARROWSMITH ENGINEERING (COV) LTD which is due to any factor beyond the control of ARROWSMITH ENGINEERING (COV) LTD such as costs of components or equipment not manufactured by ARROWSMITH ENGINEERING (COV) LTD , raw materials, general commodities freight or insurance, rates of currency exchange, duties, taxes or surcharges or improvements or mandatory modifications made under Clause 3 above.

5. PAYMENT: Unless otherwise agreed in writing, all payments shall be made in full without deduction or withholding in cash in pounds sterling within 30 days of date of invoice and free of setoff or counterclaim. Failure by the Buyer to make payment in accordance with the terms agreed shall, without prejudice to any other remedies ARROWSMITH ENGINEERING (COV) LTD may have, render the Buyer liable to pay interest upon the total sums outstanding calculated at the rate of 4% above Barclays Bank PLC base rate from time to time in force calculated from the date of delivery, such interest accruing on a daily basis and being payable on demand. Time for payment is of the essence of the contract.

6. DELIVERY:

6.1 Unless otherwise agreed and stated on the face hereof, all deliveries shall be made ex ARROWSMITH ENGINEERING (COV) LTD Works, and shall be deemed to have been effected when ARROWSMITH ENGINEERING (COV) LTD shall have notified the Buyer the goods are ready for collection

6.2 Any periods quoted for delivery or despatch are estimates only and time for delivery shall not be made of the essence by notice. If ARROWSMITH ENGINEERING (COV) LTD fails to deliver the goods (or any instalment) for any reason other than any cause beyond ARROWSMITH ENGINEERING (COV) LTD’s reasonable control or the Buyer’s fault, and ARROWSMITH ENGINEERING (COV) LTD is accordingly liable to the Buyer, ARROWSMITH ENGINEERING (COV) LTD’s liability shall be limited to the price of those goods not delivered (notwithstanding Clause 13.3(i)) and the Buyer shall not be entitled to reject any consignment of the goods or to treat the contract as repudiated in the event of any such failure.

6.3 Delivery of the goods to a carrier for transmission to the Buyer or the delivery of the goods to the place of delivery shall constitute delivery to the Buyer and the risk therein shall upon such delivery pass to the Buyer. Section 32(2) and (3) of the Sale of Goods Act 1979 shall not apply.

6.4 ARROWSMITH ENGINEERING (COV) LTD shall be entitled to make partial deliveries or deliveries by instalments and these conditions shall apply to each partial delivery.

6.5 Where the goods are ready but cannot be despatched for any reason beyond the control of ARROWSMITH ENGINEERING (COV) LTD or through the fault or delay of the Buyer, ARROWSMITH ENGINEERING (COV) LTD shall be entitled to make a reasonable charge in respect of storage and insurance of the goods.

7. TITLE AND RISK:

7.1 Risks in the goods shall pass to the Buyer on delivery.

7.2 Title of the goods shall not pass to the Buyer until ARROWSMITH ENGINEERING (COV) LTD has received in full all sums due to it in respect of:
(i) the goods; and
(ii) all other sums which are or which become due to ARROWSMITH ENGINEERING (COV) LTD from the Buyer on any account.

7.3 Until title of the goods has passed to the Buyer, the Buyer shall:
(i) hold the goods on a fiduciary basis as ARROWSMITH ENGINEERING (COV) LTD’s bailee;
(ii) store the goods (at no cost to ARROWSMITH ENGINEERING (COV) LTD) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as ARROWSMITH ENGINEERING (COV) LTD’s property;
(iii) not destroy, deface or obscure any identifying mark or packaging on or relating to the goods; and
(iv) maintain the goods in satisfactory condition and keep them insured on ARROWSMITH ENGINEERING (COV) LTD’s behalf for their full price against all risks to the reasonable satisfaction of ARROWSMITH ENGINEERING (COV) LTD. On request the Buyer shall produce the policy of insurance to ARROWSMITH ENGINEERING (COV) LTD.

7.4 While title in the goods remains in ARROWSMITH ENGINEERING (COV) LTD , ARROWSMITH ENGINEERING (COV) LTD shall have the right without prejudice to the obligation of the Buyer to purchase the goods, to retake possession of the goods.

7.5 ARROWSMITH ENGINEERING (COV) LTD shall have the right to maintain an action for the price notwithstanding that title in the goods may not have passed to the Buyer.

7.6 Until title of the goods passes to the Buyer, the Buyer grants ARROWSMITH ENGINEERING (COV) LTD, its agents and employees an irrevocable licence at any time to enter any premises where the goods are or may be stored in order to repossess them pursuant to Clause 7.4 or inspect them.

7.7 On termination of the contract, howsoever caused, ARROWSMITH ENGINEERING (COV) LTD’s (but not the Buyer’s) rights contained in this Clause 7 shall remain in effect.

8. TRANSIT: Claims for damages to goods occurring in transit or for shortage in delivery or goods received from carriers will be considered by ARROWSMITH ENGINEERING (COV) LTD only if the carriers and ARROWSMITH ENGINEERING (COV) LTD received written notification of such damages or shortage within seven days of arrival or in the event of loss of goods in transit within 21 days of the date of consignment. Where delivery is taken of goods without being checked they will be deemed to have been accepted by the Buyer unless the carrier’s delivery book is signed “Not Examined”.

9. INSPECTIONS:

9.1 Unless otherwise agreed in writing, ARROWSMITH ENGINEERING (COV) LTD will carry out such tests and inspection as it usually carries out on such goods. Any additional tests or inspections required by the Buyer will be to the Buyer’s account.

9.2 The goods shall be manufactured and released in accordance with the relevant requirements of such public or responsible body or bodies in the United Kingdom to whose jurisdiction, control or regulations the goods may from time to time be subject and in addition such goods as are manufactured by ARROWSMITH ENGINEERING (COV) LTD shall be inspected and released by ARROWSMITH ENGINEERING (COV) LTD under its own system of inspection as approved by any such body and such inspection and release shall constitute acceptance by the Buyer of all the goods.

11. INFORMATION: All drawings, descriptions, specifications, designs, documents and other information (including without limitation features contained in any of the foregoing or in any objects or software), whether business or technical, (together, “Information”) supplied or otherwise disclosed by ARROWSMITH ENGINEERING (COV) LTD are supplied or disclosed on the express understanding that such supply or disclosure shall not be construed as passing to the Buyer any copyright (or any other rights whatsoever) in such Information. All rights including, without limitation, copyright and property in all such Information shall, as between ARROWSMITH ENGINEERING (COV) LTD and the Buyer, remain vested in ARROWSMITH ENGINEERING (COV) LTD.

12. ARROWSMITH ENGINEERING (COV) LTD WARRANTY:

12.1 ARROWSMITH ENGINEERING (COV) LTD will at its option either replace or repair or issue credit for the price to the Buyer for any goods found to be defective by sole reason of faulty design (to the extent parts are manufactured to ARROWSMITH ENGINEERING (COV) LTD detailed design), materials or poor workmanship (fair wear and tear excluded) within 6 months from the date of delivery or within 60 hours of use (whichever shall first expire) provided that:
(i) ARROWSMITH ENGINEERING (COV) LTD is notified in writing within 7 days of the discovery of any such defects by the Buyer and the defective goods are returned to ARROWSMITH ENGINEERING (COV) LTD, transportation charges being prepaid by the Buyer;
(ii) examination by ARROWSMITH ENGINEERING (COV) LTD of such goods shall establish to its satisfaction that such defects exist and have not been caused by misuse, neglect, improper installation or repair, alteration or accident, inadequate storage;

12.2 If ARROWSMITH ENGINEERING (COV) LTD complies with Clause 12.1; it shall have no further liability for a breach of the warranty in Clause 12.1 in respect of such goods.

12.3 In the case of a consumer transaction as defined in the Consumer Transactions (Restrictions on Statements) Order 1976 (as amended) this condition shall not affect the statutory rights of the Buyer.

13. EXCLUSION OF LIABILITY:

13.1 Subject to Clause 12, the following provisions set out the entire financial liability of ARROWSMITH ENGINEERING (COV) LTD (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(i) any breach of the contract;
(ii) any use made or resale by the Buyer of any of the goods, or of any product incorporating any of the goods; and
(iii) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the contract.

13.2 SAVE AS EXPRESSLY PROVIDED IN THESE CONDITIONS, ALL CONDITIONS, WARRANTIES AND OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW, ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXCLUDED FROM THE CONTRACT.

13.3 Subject to Clause 13.2 and Clause 13.4:
(i) ARROWSMITH ENGINEERING (COV) LTD’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the contract shall be limited to the contract price (save where Clause 6.2 applies); and
(ii) ARROWSMITH ENGINEERING (COV) LTD shall not be liable to the Buyer for any:
(a) loss of profit;
(b) loss of business;
(c) depletion of goodwill and/or similar losses;
(d) loss of anticipated savings;
(e) loss of contract;
(f) loss of use;
(g) loss or corruption of data or information; or
any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses whatsoever (howsoever caused) which arise out of or in connection with the contract.

13.4 Except where the contract is an international supply contract within section 26 of the Unfair Contract Terms Act 1977 (“the Act”) nothing contained in these conditions shall exclude or restrict:
(i) any liability of ARROWSMITH ENGINEERING (COV) LTD for death or personal injury (as defined in the Act) resulting from negligence (as defined in the Act);
(ii) any liability of ARROWSMITH ENGINEERING (COV) LTD for fraud or fraudulent misrepresentation;
(iii) any liability of ARROWSMITH ENGINEERING (COV) LTD for breach of the implied undertakings as to title contained in section 12 of the Sale of Goods Act 1979 (as amended); and
(iv) where the Buyer deals as a consumer within the meaning of the Act, any liability of ARROWSMITH ENGINEERING (COV) LTD for breach of its implied undertakings as to conformity of the goods with description or sample or as to their quality or fitness for a particular purpose contained in sections 13, 14 and 15 of the Sale of Goods Act 1979 (as amended).

14. FORCE MAJEURE:

14.1 ARROWSMITH ENGINEERING (COV) LTD shall not be liable for delay in performance or for non-performance in whole or in part of its obligations under the contract direct or indirectly resulting from causes beyond control either of ARROWSMITH ENGINEERING (COV) LTD or of ARROWSMITH ENGINEERING (COV) LTD ’s suppliers including, but not limited to reference to, acts of God, acts of the Buyer or a third party, hostilities, embargoes, sabotage, civil disturbance, government regulations, strikes, lock-outs or other industrial action, illness, flood, fire, impact, explosion, adverse weather, delay in delivery to ARROWSMITH ENGINEERING (COV) LTD or ARROWSMITH ENGINEERING (COV) LTD ’s suppliers or shortage of any services, products or materials.

14.2 In any such event ARROWSMITH ENGINEERING (COV) LTD may without liability extend the time for performing the contract, cancel the contract or reduce the volume of the goods ordered by the Buyer. If the contract is frustrated or cancelled as a result of an event set out in Clause 14.1 ARROWSMITH ENGINEERING (COV) LTD shall be entitled to such reasonable remuneration as it may specify.

15. BREACH AND FINANCIAL CONDITIONS:

15.1 In any of the Buyer’s obligations to ARROWSMITH ENGINEERING (COV) LTD under any contract are not fulfilled or if the Buyer’s financial condition at any time does not in ARROWSMITH ENGINEERING (COV) LTD’s unfettered judgement justify continuance of the contract on the terms of payment specified, ARROWSMITH ENGINEERING (COV) LTD may, without prejudice to any other rights it may have, by notice in writing cancel any outstanding order or suspend any deliveries of or work on any of the goods unless the Buyer makes such payment for any of the goods ordered as ARROWSMITH ENGINEERING (COV) LTD may require.

15.2 In addition to any rights of lien to which ARROWSMITH ENGINEERING (COV) LTD may by law be entitled, while any amount remains due to it from the Buyer, ARROWSMITH ENGINEERING (COV) LTD shall be entitled to a general lien for such amount on all property of the Buyer in ARROWSMITH ENGINEERING (COV) LTD’s possession (whether paid for by the Buyer or not).

16. HEALTH AND SAFETY AT WORK ETC ACT 1974

16.1 If the goods are articles for use at work within the meaning of the Health and Safety at Work etc Act 1974, the Buyer hereby agrees that it is responsible for taking all necessary steps to ensure that the goods are safe and without risks to health when properly used including:
(i) regular and properly testing, inspecting and maintaining, properly installing, storing and housing the goods, ARROWSMITH ENGINEERING (COV) LTD Standard Conditions of Sale – 31 July 06
(ii) disseminating adequate detailed information regarding their sale and proper use to the persons using the goods, and ensuring that the goods are adequately manned, and the Buyer’s order for the goods shall be deemed to be its written undertaking therefore pursuant to the said Act.

17. BUYER’S PROPERTY: Any property of the Buyer received by ARROWSMITH ENGINEERING (COV) LTD whether for incorporation in goods of ARROWSMITH ENGINEERING (COV) LTD or for repair or otherwise will be held by ARROWSMITH ENGINEERING (COV) LTD at the Buyer’s risk as regards loss or damage whosoever arising (whether due to ARROWSMITH ENGINEERING (COV) LTD ’s negligence or otherwise). The Buyer shall also accept liability in cases where quantity, quality or delay in delivery of free issue items prejudices ARROWSMITH ENGINEERING (COV) LTD ’s performance of the contract.

18. PROPER LAW AND JURISDICTION: The contract shall be governed by and construed in accordance with English law and the Courts of England shall have non-exclusive jurisdiction to hear all disputes arising in connection with the contract.

19. CONFIDENTIALITY: Any information or data given in confidence, including Information (as defined in Clause 11), or any confidential drawings or other general commercial intelligence which may be received by the Buyer or any representatives of the Buyer (insofar as it is not demonstrably public knowledge) shall not be divulged to any third party and may be used by the Buyer only in connection with the goods supplied hereunder and not in any other connection whatsoever. In the event that the Buyer or any such representative so divulges any such data drawings information or intelligence to the detriment of ARROWSMITH ENGINEERING (COV) LTD, the Buyer shall indemnify ARROWSMITH ENGINEERING (COV) LTD in full against all costs, expenses damage or loss directly or indirectly occasioned thereby.

20. EXPORTS:

21. SEVERANCE: If any provision of the contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the contract and the remainder of such provision shall continue in full force and effect.

22. WAIVER: Failure or delay by ARROWSMITH ENGINEERING (COV) LTD in enforcing or partially enforcing any provision of the contract shall not be construed as a waiver of any of its rights under the contract. Any waiver by ARROWSMITH ENGINEERING (COV) LTD of any breach of, or any default under, any provision of the contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the contract.

23. THIRD PARTIES: The parties to the contract do not intend that any terms of the contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

24. ASSIGNMENT: The Buyer shall not be entitled to assign the contract or any part of it without the prior written consent of ARROWSMITH ENGINEERING (COV) LTD.

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